A Critical Analysis of the Evolution of Constitutions in Sudan1 Prepared By:2 Balghis Badri (Prof. of Sociology) October 2010 1 This research was funded by the Micro-Macro Peace Project in Sudan, supported by CMI-Norway in collaboration with Ahfad, Khartoum and Juba Universities. The project started in 2007, and findings of the research were presented in 2009 and 2010. 2 This research paper was prepared by Balghis Badri (Prof. of Sociology), Director of the Regional Institute of Gender, Diversity, Peace and Rights at Ahfad University for Women. Balghis Badri, Director of the Regional Institute of Gender, Diversity, Peace and Rights, Ahfad University for Women Page 1 Abstract: This paper is part of a wider research on the topic of reflecting on the Interim National Constitution of Sudan of 2005. The focus of the paper is to highlight the process of developing constitutions in Sudan since the pre-independence period in 1953. The paper accounts for the evolution of constitution making in Sudan as basically characterized by elitism, exclusionism and limited participation. These characteristics hampered the achievement of sustained peace and democracy to date. The purpose of this paper is to highlight the mistakes of the past in order to avoid repeating them, and to delineate participatory mechanisms needed in future for developing the permanent constitution and the main issues that it should address. The paper was updated in July 2011. Introduction In this paper, the main research concepts that need to be defined are those of constitution and participatory methods of developing a constitution. These will be dealt with in the introduction. The first section of the paper discusses the pre-2005 evolution of constitutions and their main characteristics. The second section focuses on the method of developing the 2005 constitution. The conclusion gives a summary and way forward. Constitutions are basically supreme laws made to guarantee that excessive powers of the executive body are downsized and checked so that peoples’ fundamental freedoms and rights are not jeopardized or violated by the executive machineries – namely the government. If the constitution provides for excessive powers for the government, then it defies its purpose and becomes a document for non-constitutionalism. Constitutions, then, are documents developed to represent citizens’ views and address five main dimensions of nation building, namely: 1. Systems of rule that guide the relation between government and citizens, to guarantee justice, equality and dignity of citizens. 2. Sustained equitable development that encompasses socio-cultural as well as economic development in detailed separate chapters. 3. Peaceful and just coexistence of citizens, that achieves social justice and peace without socio-cultural hegemony or marginalization. 4. Respect for fundamental freedoms and human rights of citizens. 5. Achieve principles of good governance and rule of law. If these are components of constitutions in general, the Sudanese constitution needs to address further challenges of combining traditional and modern systems of administration and justice; legitimating democratic rule and eliminating the legitimacy of the use of armed power to rule; decentralized systems of co-federalism or federalism, to overrule centralization and hegemony; transparency and accountability to negate monopoly, corruption, nepotism, domination and non-respect for the rule of law. Balghis Badri, Director of the Regional Institute of Gender, Diversity, Peace and Rights, Ahfad University for Women Page 2 Further, elaborate chapters on socio-economic rights are needed to address issues of poverty alleviation, basic services and human development rights, as well as the concerns of those who suffered from the adverse impacts of war and mal- development. Issues of identity and the relation of the state and religion are also crucial and need to be addressed in our constitution. Handling diversity, peaceful mechanisms to resolve conflict, distribution of resources with people’s just and equal rights and needs as the main focus, and opening and offering equal opportunities for all citizens to ascend the social and political hierarchy are crucial. Resolving issues of power sharing to allow diverse groups the possibility of access to power is also vital. These are all issues that need to be addressed, debated using participatory means and agreed on in order to be achieved and then constitutionalized in the constitution document. The deficiency of the current constitution is that it did not adequately address these challenges. Hence, it remains a document full of loopholes that need to be revisited, debated and amended in order to enable it to rise to the expectations and aspirations of the people of Sudan. This can only be achieved through a wide participatory methodology. Participatory methods of developing laws, and particularly the supreme law of a country, its constitution, have been used by several countries. In the African continent, it is a new phenomenon due to long years during which dictatorship characterized systems of rule in African countries. Yet, lessons can be learnt from the Tanzanian, Ugandan and South African examples in developing a participatory constitution. Participation refers to a process of active engagement between equal partners to define and achieve a certain goal or mission: the concept has to be de-linked from the notion of the mere giving of advice. Moreover, power relations of hegemony need to be neutralized and egalitarian relations between the different players, stakeholders, actors and partners as we wish to define them, need to be the principle guiding their interaction and engagement. A constitution is a forceful means for empowerment linked directly to citizenship and governance systems. To achieve that, constitution making requires engaged citizens who are aware of their rights and can fight for their protection. The constitution as the supreme law continues to be an important blueprint of the nature of the relationship between the state and its citizens. As the constitution has such fundamental importance in regulating citizens’ relations and rights, they should participate in its making and accept it as reflecting their aspirations, values and different positions. Their participation will also lessen the gap between what is stated in the supreme law, laws derived from it and public morality. Bearing this in mind, the process of developing the constitution has to be participatory. The Evolution of the Pre-2005 Constitutions The first constitution developed in Sudan was in 1956 after the declaration of the independence of Sudan in January of that year. It was called the Transitional Balghis Badri, Director of the Regional Institute of Gender, Diversity, Peace and Rights, Ahfad University for Women Page 3 Constitution because it was an amendment and adaptation of the 1953 Self- Government Statute so as to declare independence. It was not greatly participatory, nor inclusive of all the different factions of Sudan in the process of its formulation: The first constitution, that is, the Transitional Constitution of 1956, was just an adaptation of the Self-Government Statute of 1953 done hurriedly by a ministerial committee in the wake of the sudden decision made by parliament on December 19th 1955 to disregard the plebiscite provided for in the Self- Government Agreement and to declare independence by a joint decision of the two houses of parliament from the 1st of January 1956. The ministerial committee referred to above, was left with only a few days to prepare the independence constitution. (Ishag Shadad, 2008.) Despite this short time, it is important to highlight three main features of the 1956 Transitional Constitution. The first was a positive contribution where the sources of legislation were not stated. The silence on this issue was intended to please the Southern Sudanese and guarantee that a civil nation would be developed wherein all Sudanese of various religions would coexist peacefully under equal rights irrespective of religion. This was needed to guarantee that the Southerners would side with the declaration of a united, independent Sudan. The second positive aspect was the formation of a Presidency Council rather than one president. This indicates that the founders of Sudan’s independence acknowledged the diversity and ethnic/regional composition of the country which necessitated a council representing different regions and entities. The third characteristic was negative because of the constitution’s failure to include aspects of federalism or the right of the South to self-determination which was debated in the Transitional Legislative Council of 1955. This silence on the other hand led to both suspicion and resentment from the South’s leaders. As Ishag Abulgasim Shadad (2008) rightly states, “The basis of the independence constitution of 1956 and the other two transitional constitutions of 1964 and 1985, was as we have highlighted above, the draft Self-Government Statute prepared upon the request of the Legislative Assembly elected in 1948. Yet the elections for this assembly were boycotted by most Sudanese political parties who consistently requested its dissolution and urged all Sudanese to abstain from any cooperation with the said assembly as with the whole process of self-government devised by the then colonial government. The abstention from participation in such self-government institutions led ultimately to reaching independence with political